Tuesday, June 27, 2006

Tom Reilly's Flimsy Briefs

I'm not a lawyer and don't play one on the Internet (no matter how tempting). On the other hand, it doesn't take much to see that the GLAD lawyers arguing against applying the 1913 anti-miscegenation laws against Rhode Island same-sex couples seeking to marry here have better stuff than our Attorney General's office.

You can read the briefs in PDF.
The gist of this Suffolk Superior Court fight is whether Rhode Island prohibits same-sex marriage. Absent a one-man/one-woman DOMA-style law, Reilly's people have to reach pretty far. Also, Rhode Island seems to be ready to recognize Massachusetts solemnized SSMs. Its attorney general has already supported a lesbian married couple who work in his state to name each other beneficiary of retirement plans.

Judge Judging: Tip of the toupee to Likes Bikes 2 (comments below) for reminding me to cite the judge, Thomas E. Connolly. He originally ruled against Goodridge et alii, only to be overturned by the Supreme Judicial Court.

The March decision upholding the 1913 laws (Chapter 207, Section 11 and Section 12) said that a lower court could decide per state whether the local laws forbade same-sex marriage. Those laws use wording of marriages "not prohibited" and "void if contracted" in the other states.

In the case, Wendy Becker and Mary Norton visited Attleboro from their home Rhode Island seeking to wed here. The city clerk's office denied their request.

Speaking to reporters, including the Boston Globe, after the hearing, Becker said, "We feel like we have had a very long engagement (18 years) and we're willing to continue to fight so we can eventually get married. We're focused on hopefully getting married in Massachusetts and we really think that is going to happen."

According to the Providence Journal, Norton said, "We feel like the word 'marriage' has a particular meaning of dignity, love and respect. We want that for our families." Becker added,"It's sad that we have to go to court to get married."

GLAD is goingfor the easiest pickings among such states. If they are successful, next on the list are those with spongy marriage laws like D.C. and the News -- Jersey, Mexico and York. Those are also areas without strong reactionary voter populations in a huff about same-sex marriage.

Because this is a single judge, the finding should be within six weeks and as short as two. Then whether the commonwealth would appeal a loss likely depends on the wording of the finding. Because the Supreme Judicial Court adjudged that the lower court could decide, this could well be the end of it.

For Rhode Island, the briefs are telling and very different. Read them for detail; they are short at 10 pages for the commonwealth and 18 for GLAD. Assistant Attorney General Peter Sacks got stuck with presenting the commonwealth's case.

The short version of the legalese is that the commonwealth's case rests on inference not explicit law. For its lead example, it cites gender wording in state law, but nothing that prohibits homosexual couples coupling. Rhode Island law and forms list "bride and groom" wording here and there. Reilly's brief argument leads with the example:

Rhode Island’s marriage licensing law requires as follows:
Persons intending to be joined together in marriage in this state must first obtain a license from the clerk of the town or city in which:
  1. The female party to the proposed marriage resides; or in the city or town in which
  2. The male party resides, if the female party is a nonresident of this state; or in the city or town in which
  3. The proposed marriage is to be performed, if both parties are nonresidents of this state.
That may be clear that the 18th Century locals hadn't considered SSM yet, but there is nary a prohibition there. Connolly might rule for a "common sense" view instead of the strict legal one he is supposed to take. Then again, he was battered by the SJC over his Goodridge ruling.

In contrast, the GLAD case burrows down into the March SJC ruling on the 1913 laws. It points out that the majority of justices in their opinions specifically rejected general Rhode-Island-style gender ruling as law.

The GLAD brief offers very specific arguments based both on Rhode Island law and the SJC case why there is no prohibition there. Apparently as attention getters to the Superior Court here, it cites SJC justices' opinions and definitions of what would constitute such a prohibition. It concludes that "Gendered-Statutes Are Not the Same As Statutes that Expressly “Prohibit” Marriage for Same-Sex Couples" and backs that up with considerably more detail and law than the commonwealth's tepid conclusion.

GLAD also differentiates Rhode Island and Vermont laws. To get around its conflict between no gender discrimination and the DOMA-style marriage laws, Vermont turned to civil unions. Rhode Island does not have the anti-SSM wording and is not comparable.

In short, GLAD has impressive answers for everything the commonwealth avers. In truth, that is not difficult.

Unless the judge here is wary of Tom Reilly and Mitt Romney, smart money is on a finding for GLAD.

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Anonymous said...

You do realize that the judge in this case is the same one who issued the trial court ruling in Goodridge. He bought Reilly's BS 'but what about the children?'.

How did he get assigned this? What, is he the only trial court judge in Boston?

Keep your eyes peeled on this one.

massmarrier said...

Good point. I should have linked to an April post on that very issue and judge.